Teacher Disciplined for "Bullying" Student Who Had Put Up a Swastika

More than a year later, an arbitrator held the discipline was largely (though not entirely) improper.

Westlaw just posted a very interesting employment arbitration decision from July of this year, and I thought I'd pass it along. First, the backstory, summarized well by the Brandeis Center (which took the teacher's side, but which I think laid out the facts fairly):

[I]n November of 2016, … a then-Stoughton High School senior ("John Doe") posted a swastika while the students were decorating the "Spirit Wall" as part of the school's annual "Spirit Week" activities. When other students asked him to remove the swastika—including a Jewish student, as the other students pointed out—John Doe responded, "well just burn it like they did to the Jews." John Doe served a six-day suspension for his actions.

As news of the incident and John Doe's suspension spread throughout the school, John Doe's mother complained to the superintendent of schools that Ms. Moll and the other teachers were targeting, defaming and bullying her son by discussing the anti-Semitic incident with others, causing him to suffer emotional distress. The mother also complained that Ms. Moll withdrew a letter of recommendation for acceptance at a college that she had submitted for John Doe [and that Ms. Moll provided some information about the incident to the college administrator who contacted her about why she withdrew her letter, and the information led the college to withdraw Doe's acceptance].

The school suspended Moll for 10 days (plus an extra 10 days for supposedly lying during the investigation, but I set that aside for the rest of the post, largely because the arbitrator found that Moll hadn't indeed lied); here was the school's argument, as set forth by the arbitrator:

[The school] asserts it had just cause to suspend [Moll] …, even though it was the first time she was disciplined, because she bullied a student, [and] violated the Employee Handbook …. When [Moll] heard that [Doe], a student for whom she had written a recommendation, may have been involved in a swastika incident, her first reaction was to confirm this so she could take action. She spread the story to other teachers, including [REDACTED] and pursued the topic with [REDACTED] repeatedly. She also contact the student's college of choice, reported that he had engaged in an action for which he was disciplined, and included details of the infraction.

[The school] does not challenge the fact that [Moll] had the right to withdraw her letter of recommendation; however, she went out of her way to inform the college of specifics of [Doe]'s actions, as she understood them, in what can only be described as an attempt to interfere with his acceptance to that college. [Moll] reached her conclusions about the student immediately upon confirming that [Doe] had made a swastika and an insensitive comment on November 22nd. In light of her comment to Dean [REDACTED] on November 23rd, it proves she made her decision to withdraw her letter without knowing all the details of the incident. The timing of [Moll]'s actions is significant because she informed the college before [Doe] had been afforded due process and before [the principal] had disciplined him in accordance with the Student Handbook. Nevertheless, [Moll] took it upon herself, without any thought to [Doe]'s rights, to interfere with his future. Again, she acted contrary to her stated interest in protecting students.

Although [the school] acknowledges [Moll] had every right to withdraw her letter of recommendation that is not why she was disciplined. Rather, [the school] contends [Moll] did not have the right to tell the college the details for which the student was disciplined or that he had been suspended. In fact, as [the principal] testified, in her six years as principal, she has never notified a college of a student's discipline. Students are expected to self-report on their applications any suspensions over ten days. If a college wants details about a student's disciplinary history, it will reach out to the school through the principal's office, not through individual teachers. Finally, even if she had the correct details, [Moll] knew or should have known that sharing the details of a student's discipline was not appropriate. Instead, she intentionally chose to give details rather than refer the college admission's office to [the principal] the person responsible for discipline. By doing so, [Moll] went outside the "chain of command" she insisted that she had to follow….

[The school] also argues [Moll] violated [the school]'s Employee Handbook. That Handbook contains a "Bullying Prevention and Intervention Plan." There is no dispute that [Moll] received a copy of the Handbook, and its contents clearly applied to her. It is well established that teachers hold a position of special public trust. Students must be able to reply on teachers to exercise sound judgment and maintain appropriate boundaries.

[Moll] violated that trust when she sought out teachers and students to discuss [Doe]'s actions. She took actions to ensure there were consequences, in addition to those imposed by the Administration, for his actions. [Moll] spoke to another student about the incident, selecting him because he was Jewish. She asked the student if he was angry about what had happened and when he said he was not, she told him she was disappointed in him, apparently trying to create a hostile environment for [Doe]. In addition, although the two female students who reported the swastika incident to [Moll] had said they were not in fear of or concerned by the student's actions, [Moll] portrayed them as upset, demonstrating that she was trying to get them to be angry with [Doe].

[The school argues Moll]'s actions meet the definition of bullying from the Employee Handbook …. The student's reaction to [Moll] supports this conclusion. [Doe] avoided [Moll] in the halls because she had created a hostile environment. The Administration disciplined [Moll] for failing to provide the appropriate educational climate, failing to perform her roles and responsibilities as a teacher, and failing to exercise sound judgment….

Finally, [the school] asserts the First Amendment is not applicable in this matter. [Moll] contends she was exercising her first Amendment rights when she spoke to the college, the teachers, and students; however, the right to free speech is not absolute. The First Amendment does not grant teachers the right to violate a student's rights under the Student Handbook or to violate the Employee Handbook.

The arbitrator largely agreed with Moll, and rescinded her suspension:

[Moll] did not engage in bullying, violate the Employee Handbook, act contrary to the mission of the school, or demonstrate conduct unbecoming a teacher, during any of her conversations with students or fellow teachers. She never discussed [Doe] or his discipline with any students. Rather, she was apprised of an incident by [REDACTED] and [REDACTED], which she said she would have to confirm. There is no evidence that [Moll] pursued the subject further with either of them.

She brought up the incident, not [Doe], in her conversation with [REDACTED] in the context of inquiring about his well-being. Furthermore, the record is clear that [Moll] never spoke to [Doe]. As for her conversations with other teachers, again the evidence does not support the allegation that [Moll] was targeting [Doe]. Rather, [Moll] and her peers were discussing a serious incident that was an ongoing topic among both the student population and the teachers, and was the subject of a sanctioned faculty meeting.

It is not unexpected for teachers to discuss matters affecting the student population and the educational environment. In fact, not only did the Employer fail to cite any rule or policy prohibiting teachers from engaging in such discussions, its Mission Statement states that the school's "goal is to provide students with the knowledge and skills needed to become articulate, productive, creative, and responsible citizens." Certainly collaborating with peers on how to address this topic within the school community would fall within the goal of providing students with the knowledge and skills needed to become responsible citizens. In addition, from the record evidence I conclude that [Doe] may have become emotionally distraught about all the attention the incident received and reluctant to attend school, but that was due to his behavior and not because of [Moll]'s actions.

The arbitrator concluded, though, that Moll could be reprimanded for giving extra details to the college to which Doe was applying, beyond just withdrawing the letter of recommendation:

With respect to [Moll] withdrawing [Doe]'s letter of recommendation, as the Employer acknowledged, she had every right to do so…. [H]owever, the matter did not end there. When the representative from the school of choice called her back the next day and asked if she could give reasons for withdrawing her letter, [Moll] proceeded to tell him it involved an anti-Semitic incident and used the words "hate speech." This went beyond [Moll]'s right to withdraw her letter or to express a protected opinion. [Moll] made a representation to the school of choice about an incident she knew was under investigation by her school's administration for possible disciplinary action rather than refer that representative to the administration.

The Union contends [Moll] cannot be disciplined because she did not have notice of a consistently enforced rule, reasonably related to the orderly operation of Employer' business, prohibiting her from disclosing this information. [Moll] admitted during her arbitration testimony, however, that she was aware her school had a "chain of command." Furthermore, she testified that, although teachers are mandatory reporters and are supposed to report incidents such as the swastika one, such incidents are supposed to be dealt with up the chain of command.

In fact, as [Moll] was well aware, the school administration was already handling the incident. When she went to see Dean [REDACTED] on November 23, he told her he was aware of the incident and it was being taken care of. Dean [REDACTED] had spoken to [Doe] that morning and given him a two-day emergency suspension pending a hearing with [the principal] The hearing took place on November 29, the Tuesday after Thanksgiving break, and [Doe] was suspended the next day, November 30. [Moll] called the school of choice to withdraw her letter the day before [Doe]'s hearing, and spoke to the representative the day of the hearing.

[Moll] was not a party to any of these proceedings. She had no access to student disciplinary records. She also had no authority with respect to student discipline. [Moll] disclosed information concerning an incident the administration was in the process of investigating and for which she had no first-hand information, rather than refer the school of choice to someone in the administration. In doing so she ignored her school's established chain of command.

I need not reach the First Amendment argument raised by the Union because this does not involve the issue of whether classroom speech is reasonably related to a legitimate pedagogical concern. Nor does it involve [Moll]'s characterization of the swastika. Rather, it involves [Moll]'s violation of an Employer protocol of which she clearly had knowledge and understood. For this reason the Employer had just cause to discipline [Moll].

[But I] do not agree with the Employer's assertion that by giving these reasons to the school of choice [Moll] engaged in bullying of [Doe] in violation the Employer's Bullying Prevention and Intervention Plan. Her speaking to the school of choice, while contrary to the Employer's established chain of command, does not fit within the definition of "bullying," as cited above. It did not cause physical harm to [Doe] or damage his property. It did not put [Doe] in reasonable fear of harm to himself or of damage to his property. It did not infringe on [Doe]'s rights at school, or materially and substantially disrupt the education process or orderly operation of the school. Furthermore, as I have already noted, to the extent [Doe] experienced emotional harm or felt the school had become a hostile environment, this was a direct result of his own behavior….

Because I have found that [Moll] did not commit the vast majority of infractions cited by the Employer, the suspensions it issued are not warranted. Having found, however, that the Employer had just cause to discipline [Moll] for disclosing to the school of choice information concerning the swastika incident in violation of an Employer protocol, some discipline should be imposed. As a general rule, discipline should be corrective and should be administered in a consistent manner, i.e., employees who engage in the same type of misconduct must be treated essentially the same unless a reasonable basis exists to vary the punishment.

[Moll] has been employed by the Employer as an English teacher in its High School for 16 years. Prior to this incident, she had an unblemished disciplinary record…. [O]ther teachers, who have been employed for similar periods of time and who also have unblemished records, were issued a letter of reprimand for their respective infractions [in other cases]. In light of [Moll]'s single instance of misconduct, her clean disciplinary record, and the existing comparative discipline of which I am aware, I find a letter of reprimand is appropriate.

Whether Doe should or shouldn't have been punished for his speech wasn't an issue in the arbitration, and I can't speak with whether such speech is protected by the First Amendment—that depends on whether it was seen as sufficiently likely to be sufficiently disruptive, and I don't know the facts on that. Likewise, I can't speak with confidence about whether the teacher's speech should have been seen as more constitutionally protected; I don't think the arbitrator was right to reject the First Amendment argument simply because the speech violated an employer rule, but it's possible that the violation might itself have been seen as disruptive enough to the school's mission to be constitutionally unprotected. The free speech rules in this area are pretty vague and can turn on subtle factual differences. But I just thought this was an interesting story to pass along, as an illustration of how some such controversies sometimes proceed.

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As someone asked to give a reference letter she shouldn’t be beholden to the chain of command. She’s acting as a private citizen who is jus teacher in a different context. Anybody can be asked to give one and it isn’t really part of their employment whether or not they write one.

Also, the idiot served a suspension. If they were still investigating why he needed to be suspended then why was he suspended? I feel that the administration is trying to avoid the mother’s wrath rather than act correctly.

The only parts of the story that raised an eyebrow for me were the claim that the student lied when he did not and the pressuring by Moll to make students feel offended and in fear of their safety. THAT alone should have been grounds for suspension.

That’s the school’s argument, which the arbitrator clearly doesn’t believe: “She never discussed [Doe] or his discipline with any students. Rather, she was apprised of an incident by [REDACTED] and [REDACTED], which she said she would have to confirm.”

Re-read the article. She wasn’t beholden to the chain of command in regard to the reference letter. Even the school admitted that she had every right to withdraw the reference letter. Where she went wrong was in going beyond the reference letter by discussing school disciplinary procedures which: a) were still on-going b) were covered by privacy laws and policies c) were a topic of which she did not have complete knowledge and d) were not a topic on which her employer authorized her to speak.

And here we had a student who, amazingly, in HIGH SCHOOL, still needed to learn that actions have consequences. She helped him with that.

Doe asked this teacher to become involved in applying to (school of choice). Then, right after she’d done so, Doe offended her. Now, he wants to complain that she’s affecting his application to {school of choice).

If federal privacy laws are understood to permit a teacher to say nice things about a student but not to permit a teacher to say true and ostensibly unflattering things about a student — at some schools, news of this student’s conduct might not be seen as bad — the understanding of those provisions might bear review.

Teachers may submit letters of recommendation and teachers may withdraw letters of recommendation. Neither of these outcomes rely on teachers postulating about ongoing disciplinary hearings that they aren’t privy to. The arbitrator made the right call.

“As someone asked to give a reference letter she shouldn’t be beholden to the chain of command.”

There is no reason schools can’t have appropriate rules about who is and isn’t allowed to give reference letters. Teachers are evaluating students in their capacity as teachers, not private citizens. Unless a teacher is being asked to evaluate the student based wholly on their contact with the student outside the classroom, then the letter is related to their employment.

I doubt the 1A would have a problem with a content-neutral blanket policy of forbidding letters of recommendation. It’s not speech ‘on a matter of public concern’ and the restriction could be justified with regards to the core needs of the school.

That said, they’d be shooting themselves and their acceptance stats in the foot.

“I doubt the 1A would have a problem with a content-neutral blanket policy of forbidding letters of recommendation”

What crucial issue of government concern is that hypothetical policy “narrowly tailored” to address? Hint: You tipped your hand by calling it a “blanket” policy. “Blanket” and “narrowly tailored” are difficult to reconcile.

This is a matter involving the teacher, having been requested personally by the student to intercede in his application to (school of choice), interceding in his application to (school of choice). Notice what’s missing there? The employer. Writing letters of recommendation is NOT part of a teacher’s duties as teacher.

Please read the above cases for further guidance on the actual state of 1A law in this regard. Or read one of Eugene’s fine summaries.

Here’s a hint:

Pickering, its antecedents, and its progeny lead us to conclude that if Myers’ questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge.[6] When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.

A teacher’s comment about a student’s qualifications for a university in no way constitutes speech on a matter of public concern. As a result, the school’s management retains wide latitude in managing their employees speech without triggering 1A scrutiny.

Yep. And you’re still on the wrong prong of the inquiry. You’re doing the test for when a government employee’s speech is disruptive to the workplace. If it is, but on a matter of public concern, it might still be covered by the 1A. But that’s the wrong starting point.

Before the government can put in a blanket prohibition of speech, it has to show that the speech interferes with the proper functioning of the office. Lacking that, it has no power to punish the speaker, even if he or she is an employee.

“That’s hardly relevant to whether the government-as-employer can regulate speech related to an employees official duties”

Writing letters of recommendation still isn’t part of, or related to, anyone’s official duties. So we still have the problem that you want to talk about whether something is relevant to government regulating official duties, and whether government can regulate official duties is not relevant to the question at hand.

“It is employee speech and not on a matter of public concern. The Court was very clear in Myers that this is the end of the inquiry.”

You skipped a step. With regard to employees, government has power from two sources… it is the government (sovereign) and it is the employer. Government-as-sovereign has no power to punish speech, because of the first amendment. (Yes, that’s a gross oversimplification.) Government-as-employer, however, has power to punish speech related to employment, just as any other employer does. Because of this, the first step of the analysis is to determine which role the government is in, which means determining if the speech at issue was part of the employee’s work, or if it is separate from work. If the speech is separate from work, then the government does not have as-employer power, and must rely on its as-sovereign power, which is limited by the 1A.

So the government is within its power to set a workplace rule, say “all employees and managers are to be treated with respect and dignity”, because that’s related to working together. If they have such a rule, or one is implied, then you choose to walk into your place of government employment and tell the boss “you’re ugly and your mommy dresses you funny”, you could be punished for doing so, because your speech interferes with the proper running of the office. Now, suppose you go home from work, and you tell your spouse “wow, you wouldn’t believe the ugly shirt the boss had on today. Whoo-ee!”, that’s not a matter of public concern, but it’s also not work-related. If the boss finds out you said that about his lovely shirt, and tries to fire you for it, you have a defense… What you say to your spouse at home is not work-related. It doesn’t affect the proper running of the government office you work at, so it isn’t something the government can act on.

On the other hand, sometimes there are things said that are contrary to the interests of the government-as-employer that are protected by the 1A. For example, if I point out something to my boss’s boss that my boss is screwing up and wasting giant amounts of taxpayer funds, that might be protected, even though embarrassing the boss is usually contrary to smooth office operations. Going to the press creates an additional set of 1A concerns, which aren’t worth getting into, and there are some exceptions to even this general rule (political appointees, for example, can be removed for publicly disagreeing with the boss even if they are right to do so.)

Good luck arguing to any court that a teacher at a school writing a letter of recommendation for a student based upon the teacher’s experience with the student at that school is not speech that is directly related to the teacher’s job function at the school.

If you do ever plan to do that, please invite me to view the hearing. I’ll get popcorn, it’ll be grand.

“If you do ever plan to do that, please invite me to view the hearing. I’ll get popcorn, it’ll be grand.”

But before I do that, be sure to tell me what OTHER additional details you’ll be attempting to introduce to alter the issue being argued, so that unlike THIS time, you won’t be adding extra details not in the original.

Or did you think I’d miss the difference between “a content-neutral blanket policy of forbidding letters of recommendation” and “a teacher at a school writing a letter of recommendation for a student based upon the teacher’s experience with the student at that school”?

My great aunt worked with Methodist missions back in the early 20th century, and collected quite a bit of money that was sent to missions in India. As a thank-you and a wish for her well-being, they sent her a small gold swastika pin with a seed pearl inset in the center. I have it now, and have no idea what to do with it, due to the fact that thousands of years as a religious and spiritual symbol for multiple cultures has been obliviated by both Nazis and folks for whom history doesn’t go back more that a couple of centuries.

There is a scene in the Nazis-on-the-Moon film Iron Sky where the Indian delegate to the UN is attacked for wearing a swastika ring; he points out it was a symbol of peace.

The swastika can be found in use by Nordics, American Indians, Asian Indians, Chinese and other cultures going back over over thousand years. To the original users, it was a symbol of strength for good, often symbolizing the sun. In reaction to the Nazi use of the symbol from the 1920s on, thousands of artifacts decorated with the symbol were destroyed including Chinese lattice work, American Indian teepees, American cowboy leather gear like holsters, Asian Indian artifacts, all predating Hitler and the German National Socialist Workers Party with no connection to Nazi-ism.

The local federal courthouse here in Albuquerque is positively slathered in swastikas and swavastikas. (Reverse chirality swastika.) Though they are typically presented on edge here in NM, and not on corner.

There’s a WW1 war memorial monument at Balmoral Castle in Scotland, and on the base are carved swastikas. So they put up an explanatory sign to note that the thing was created long before the Nazi rise to power, and was an Indian (the UK still owned India then) good luck symbol.

I have a collection of Kipling’s poetry printed in the early 1920s; it has a swastika embossed on the cover.

Many years ago, somewhere on the north side of Chicago, I visited a 1920s apartment building (brick, 3-story, multiple entrances type). The tile floor of the lobby was decorated with swastikas.

I’ve seen a photograph of Jackie Kennedy (in the 1950s IIRC) wearing an American Indian ceremonial costume decorated with swastikas.

I have a book on WW I tank development; it has a picture of a German experimental tracked vehicle with a swastika emblem.

The Finnish Air Force adopted the swastika as its emblem in 1918. (They painted it on American-built Brewster Buffalo fighters which Finland bought during the 1939-1940 Winter War against the USSR. The Buffalos served with the Finns in the Continuation War against the USSR in 1941-1944 and the Lapland War against Germany in 1944-1945.)

A better way to ‘teach’ kids about the swastika added to the project, was to discuss what Socialism is and why it was inappropriate to include that in the project.

Since schools have largely become propaganda clinics for the Left, I can understand why they dont have good teachers, teachers are not allowed to stand up to students, and bashing Socialism for what it is would defeat the ultimate goal to create future Socialists.

This reminds me of my step-siblings, who would do something truly terrible and get punished. When asked why they were being punished, they’d respond along the lines of, “because dad is mad at me” — as if their prior actions had no connection whatsoever to the situation.

She didn’t deprive him of a college education. He did something truly stupid, then doubled down on it by making his comments. When that gets reported, it had real consequences for him. I’m sure he’ll be able to look for an alternate college, where he’ll be able to get an education. And he’ll certainly know that making very bad decisions can result in serious consequences.

In socialism, the government owns the corporations. In fascism, the corporations own the government. America doesn’t have any real socialists or communists in power, and they’re pretty rare overall. Democrats want to take YOUR money away from YOU and give it to peaple who are poorer than you are. Republicans want to take YOUR money away from YOU and give it to people who are richer than you are.

“Anyone to the Left of Libertarianism are Lefties.” No two Libertarians agree on much of anything, including (specifically) what, exactly, it means to be Libertarian. So that definition is literally meaningless.

Healing the poor or feeding the hungry is only socialism if you force other people pay for it. Not if you do it all by yourself using magic.

It’s true the Nazis were not socialists but white supremacist groups are not ‘right wing’ or ‘far right’ either. Both sides should use language correctly, but when one side is misusing language for political gain so much more and the media has joined in on their side, I don’t see anything wrong with attacking them using their own weapons.

Built a vast social safety net and welfare program Expanded mandatory public education Implemented a high minimum wage Instituted high income and corporate tax rates Placed limits on bank lending rates Placed limits on the amount of profit a business owner could earn Forced businesses to hire workers Prevented businesses from firing workers Prevented people from transferring money outside the country Placed government employees on the boards of corporations to control them

Every single one of these is a major socialist economic policy. Nazis being socialists isn’t just because of the name; it’s because of what they DID.

That’s all cherry picking from the wildly varying policies the party had throughout the rise and fall of the Reich. When the chips came down, the Nazis chose to spend all their resources to continue their persecution of outgroups and invading other countries well beyond any of the above policies.

You also don’t seem to know much about ‘major socialist economic policy.’ When you have to cherry pick on one side and transform the other a tad to make it fit, you’re revealing more about yourself than either of the two ideologies you’re qorking so very hard to equate.

That people are still into the all bad things are the liberal including Nazis BS while Nazis are marching for Trump is just sad.

Sarcastro, you seem to be trying to claim that the Nazis performing genocide was a right-wing policy? Is that correct?

Incidentally, neither Sarcastro nor Pollock actually manage to address the fact that the pre-war Nazi policies were straight down the Socialist playbook. Aside from opposing Moscow, they were in line with the Communist party platform, too.

If either of you can actually state the way that the Nazis were right wing, I’d like to see you do it.

Try looking at it with your partisan goggles off. The Nazis were right-wingers, not left. Both the fascists AND the commies are objectionable to a free people, but they’re bad because they are authoritarian and remove freedom from people who choose differently from themselves, not because of which side they chose.

Pollock, nothing you said has anything to do with showing that the Nazis were ‘right-wing’. Yes, the Nazis were totalitarian. Yes, the Soviets and their International Communist supporters were totalitarian. Yes, totalitarianism is bad.

None of that says a single thing about whether or not the Nazis practiced socialist economic policies. Your entire post is a hand-waving distraction; and “These are not the Socialist you are looking for.” only works in movies.

“you have failed to even make an attempt to rebut any of the socialist policies I pointed out the Nazis implemented.”

Because, as was pointed out before, implementing a policy that socialists also advocated for, doesn’t make anyone a socialist. It makes them whoever they are, who also implemented a policy that socialists advocated for. Cherry-picking a few examples proves nothing of the sort.

American Republicans are not socialists, but they DID vote for Medicare Part D, a socialist healthcare program. Dwight Eisenhower was not a socialist, but he did oversee the creation of the interstate highway system.

If anyone who’s ever taken a socialist position on any issue, no matter how briefly or how trivial an issue, then everyone’s a socialist and referring to “socialists” has no meaning, it’s just a way of saying “other people”.

Wait, your argument that the Nazis aren’t socialist is to claim that other people sometimes implemented similar socialist policies? And your counterexample is healthcare?! That doesn’t show that the Nazis were not socialist, it shows that other countries also have minor socialist policies.

What about the capital controls, the forced hiring, the inability to fire, the limited profits, the government employees on the corporate boards? Those are MAJOR socialist practices that are NOT widespread. Why are you ignoring the substantial examples I listed?

“Pollock, you have AGAIN failed to make an argument, much less a good one.”

As the person proposing a theory, you have the burden of providing evidence that supports it.

“Here, let me summarize this thread:”

No, allow me: You: I have a theory that I want you to consider. Here is some weaksause evidence that supports my claim. Me: That evidence is not at all convincing. Here’s why. You: But you HAVE TO believe me. You HAVE TO!!! You didn’t disprove my theory! (crying baby emoji) Me: Go away.

Pollock, have you ever participated in a debate, ever? Have you ever learned to make an argument, or to counter another’s argument? I haven’t seen any sign of it yet, and you increasingly childish behavior does little to counter that impression.

I have argued that the Nazis were socialists, because they did socialist things. I gave examples of those socialist things. You do not counter an argument by saying “I don’t believe you”. The Nazis had many major socialist policies. This is a fact. It doesn’t matter if you like it or believe it – it is reality. If you were attempting to argue that the Nazis were not socialist, despite having socialist policies, you could present that argument. You have consistently failed to do so. You have failed to show that the Nazis did not implement the polices I cited. You failed to show those policies are not socialist.

You have utterly failed in any way to counter my initial argument, much less make a rebuttal. Now you’ve abandoned anything except childish insults. And that is pathetic.

Modern Socialists have to hide their Socialist past, otherwise people can do what we do on Reason, just blast the Socialists for being the ideology that murdered millions.

Lefties cannot hide from history, so they use the propagandists of the media to re-write history or ignore it. The internet changed all that by giving access to history for anyone who wants to read about it. Lefties then seek to control the internet.

It’s straightforward cognitive dissonance. Lefties are bad guys, because some of them bought into Lysenko “science”, and some bought into repressive pogroms. But… the most ardent anti-lefties of the past decade bought into repressive pogroms. Therefore, the most ardent anti-lefties of the past decade… were lefties!

“He did something truly stupid, then doubled down on it by making his comments.” That was really all one incident, not doubling down. Teens are rash by nature. Without a teacher taking the opportunity to teach, after a cooling off period, and have the youth think through and talk through their actions and words, we will not know whether that moment reflected the teen at their best, or to have observed the teen’s capacity for self reflection, and empathy. Then if the teen still has a ‘fuck jews’ attitude, well then that can go in the college letter. But don’t nuke the kid for acting in what might just be a moment’s stupidity.

The teacher on the other hand, with opportunity for self reflection, and empathy, was the one who doubled down, failed to be a Teacher, and acted as a vindictive asshole.

Requesting a teacher to write you a letter of recommendation practically requires a waiver of educational privacy. How else could the teacher write anything at all?!

The only mistake maybe is not in formally having the kid write a waiver letter. You’d think it would be implicit since the kid’s request literally cannot be accomplished otherwise, but OK, let’s lawyer it up with a nice form waiver.

Probably not — it’s a hugely important issue, but one on which I know quite little. The legal issues generally fall in the category of either public employee labor law or civil service law, both of which are complicated schemes that I know little about. The policy questions fall in the realm of public administration, a complicated area in part because there are so many agency costs to deal with, as well as legal and constitutional constraints. (Public employees may do things that hurt the enterprise to benefit themselves, financially, professionally, and ideologically, and you want administrators to prevent that; but public administrators may likewise do things that hurt the enterprise to benefit themselves, financially, professionally, and ideologically — and indeed arbitrators may as well.) So it’s one of the many questions that I admire from a distance.

I would have expected some discussion of whether the teacher spoke as a citizen or as an employee in performance of her job duties, for if the latter, her speech was likely government speech unprotected by the first amendment per Garcetti v. Ceballos. If, but only if she spoke as a citizen would the Pickering balancing test come into play.

You haven’t laid out your analysis, but I don’t see how you reach the conclusion(s) you state.

Before you reach the first amendment analysis, you have to (as he arbitrator has done) determine if there’s an actual violation of policy for which the punishment is given. If there isn’t, then you don’t even need to start a 1A analysis… the contract determines the outcome. If there IS a violation of policy covered by the contract, you then have to work out if the contract is enforceable as written, because people can bargain away rights they would have retained. Only THEN do you hit the 1A question.

The arbitrator found Moll acted improperly by providing extra details concerning the student’s conduct; that’s plainly discipline for speech. The last paragraph of the OP notes the background potential first amendment issue, suggesting the possible role of the Pickering balancing test (disruption to the school’s mission). It is to that suggestion I responded; Garcetti establishes that, before applying Pickering to public employee speech (leaving aside public postsecondary faculty), a court should first determine whether the employee spoke on a matter of public concern as a citizen or as an employee, and only proceed to Pickering if the former is true. It seems likely here that the teacher spoke as an employee, not as a citizen, and if that is so, then there is no free speech issue to resolve.

“…but only if she spoke as a citizen …” The teacher’s speech was clearly as a teacher. The only reason for the recommendation was the student-teacher relationship. Colleges require letters from teachers who are or have taught the student. Were the teacher not employed by the district, and charged with teaching this particular student, she would not have been writing a letter of recommendation. She was acting as an employee in the role of teacher throughout her interaction with both the student and with the college. Professionals, should teachers need the reminder, have responsibilities of their profession, not all of which are written in the employee handbook. Some teachers go above and beyond. This one went below and far short.

If as I suspect the teacher was speaking in her capacity as and pursuant to her job duties as an employee rather than as a citizen, then the unprofessional character of her speech is beside the point. Garcetti does not only remove unprofessional speech from first amendment protection; recall that Ceballos lost his job in retaliation for disclosing suspected perjury. Here, even if the teacher had disclosed the student’s professed intention to kill identified faculty members at the college, she would have no free speech protection if her speech were deemed government speech of her employer.

“If as I suspect the teacher was speaking in her capacity as and pursuant to her job duties as an employee”

That’s rather a stretch, since people don’t have to be teachers to write letters of recommendation, nor employees (of anybody, but specifically employees of the school). Writing letters of recommendation is a personal favor, not part of the job.

There are private schools where getting the little darlings into good colleges IS part of the job. But private schools don’t have first amendment concerns.

The school is acting to preserve the student’s privacy interests. Those are by necessity waived in cases where the student has asked the teacher to prepare a recommendation. The error, if there is one, is in referring to the incident as established fact if it were not, or if material details remained undiscovered. That would be defamation, but the remedy for defamation is lawsuit between the parties, and the school administration’s effort to intercede is troubling because it attempts to create a fault of the teacher with regard to the official duties, and there isn’t one (says the arbitrator).

The school administration is taking flak from the kid’s mother because the kid’s choices had consequences neither kid nor parent imagined, and they are looking for someone to blame who is not the kid. Everybody involved has an opportunity to learn from this occurrence. Let’s see if anyone learns anything.

I’m not generally in favor of labor arbitration (even if it got the right result here), but I am very happy to see pushback against the modern idiocy of “bullying.” That word has become a meaningless concept, referring to any behavior people disapprove of.

Speak of the devil, i am frozen in place, afraid to turn and look at the uncanny resemblance I fear I will see in the mirror. Fear and hatred have a way of transporting us to the worst of our collective memory, and the nightmare lives on.

One formulation is about thus: Bullying is using force or threat of force to achieve compliance from the victim. In criminal law, it would be similar to extortion. The appearance of bullying comes from the fact that the being denied entry to one’s preferred college feels like an application of force. The flaw in this approach is that the teacher who withdrew the recommendation doesn’t actually have the power to deny entry to college.

Again, she acted contrary to her stated interest in protecting students.

Time and again you get stuff like that from school administrations. When they say it, they are trying to wash their hands of any responsibility to protect students. It’s akin to the other offensive approach mentioned by commenters above, that incidents like this one should be handled as teaching opportunities, instead of occasions for discipline. Both approaches are alike, because they prioritize the well-being of the offender ahead of that of the victims. And both approaches re-offend, making any victims subject to unpunished abuse from the offender, plus also the neglect of any responsibility to protect from the administration. What those approaches teach bullying victims is, “You’re on you own, this school doesn’t care what people do to you.”

She also had no authority with respect to student discipline.

See what school administrators say when a teacher repeatedly refers a bully to the administration for discipline. All too often, they tell the teacher that student discipline is entirely her responsibility, and that if she keeps sending kids to the administration, that will be taken as incompetence. On the basis of the discussion, this seems to be a school administration of that sort.

The right approach to school discipline is to protect first all the students who do not misbehave?and to do that at every point of contact with school personnel.

apedad, the school could choose a policy of tough, exemplary punishment for offenders. That’s how you protect the victims, and other potential victims.

Educators have to face the fact that once bullying gets a foothold, some students are going to be harmed. The educators’ first duty is to make sure it is the perpetrators who are harmed, and not the others. With that duty recognized, and acted upon, education of perpetrators afterward can do no harm, and might do some good. But attempts are misguided to include on a basis of equality in any anti-bullying education program the victims as well as the perpetrators. Doing that confuses the message, risks blaming the victim, and minimizes moral judgment against the offense.

Purely educational responses risk harmful outcomes. Offenders just snicker, refuse to engage, and wait out the short interval before administrators inevitably move on. Then the offenders go and do it again. Presently, the victims come to see the administrators and the offenders as complicit?an appalling outcome, but commonplace. Sometimes, that impression is objectively accurate, even if the administrators’ motive for complicity is not an intentionally bullying one, but instead an attempt to keep themselves out of controversy, or whatever.

If this case came up 30 years ago, bullying would not have been mentioned, and it would have been dealt with one way or another. They chose bullying because it’s a new, and sufficiently vague weapon to use against students and teachers. There is no rational connection to bullying here in the plain English meaning of the word. What you’ve got is the willingness of bureaucrats to use whatever cause-of-the-day tool is available to step on people’s rights.

Frum, seems like the question of rights was adjudicated, against the offender. In consequence, you seem to be protesting that outcome. I’m okay with calling too disruptive an overtly Nazi display of a swastika, especially in combination with a comment about burning Jews. Do you really think otherwise? In what other purposeful venues would you regard doing that as a matter of right? In the military? Government offices? Private businesses? Private schools? Where?

It seems to me that Doe’s expectation of confidentiality of his student discipline history with regard to Moll is waived when he asked her to contact [school of choice] on his behalf to inform them as to his qualifications to join the student body at [school of choice].

There’s not a question of due process unless Moll claimed to speak authoritatively for the school, of which I see no mention but the circumstances suggest she represented her opinions as her opinions… according to this account, she withdrew her letter of recommendation, and when asked why, gave her reasons.

I generally don’t try to read people’s minds, but I’m going out on a limb here and assuming that the school isn’t pro-Nazi. Instead, I imagine they’re worried about liability for disclosing student information, even (or especially) about bad stuff students do.

” I imagine they’re worried about liability for disclosing student information, even (or especially) about bad stuff students do.”

Also, or perhaps instead, their concern is due process. Settling on punishments before you’ve finished determining guilt is poor form. They ARE… let’s say, “miffed” that details of the student’s history were disclosed, but the timing, and the identity of the person making the disclosure, are important.

The teacher’s word is not dispositive of college admission questions, but is certainly influential. Suppose that the teacher’s actions were the same, but (oops) it turns out that the student didn’t say anything even vaguely like what was reported to the college. The college is already influenced against this kid who (oops) isn’t guilty. He’d already been admitted, and the teacher’s actions affected the decision to repudiate the admission decision. Will the school’s word that the kid is not guilty cause them to re-admit him? If not, what is the proper remedy?

Also, or perhaps instead, their concern is due process. Settling on punishments before you’ve finished determining guilt is poor form. They ARE… let’s say, “miffed” that details of the student’s history were disclosed, but the timing, and the identity of the person making the disclosure, are important.

This argument doesn’t make a lot of sense. What if the teacher, in his original letter to admissions officers, had said, “This guy is a pretty good student who is very active and involved and goes above and beyond in class and yada yada yada, but I cannot recommend him for admission to your school because there was an incident in which he was accused of doing such and such”? Is he not allowed to say that because of concerns about due process? Is he only allowed to write things about a student that have been proven at a hearing?

A letter of recommendation is a teacher’s personal opinion/assessment of a student. Not a recitation of what’s in the student’s file.

“A letter of recommendation is a teacher’s personal opinion/assessment of a student.”

It is. A teacher is well within his or her rights to decline to recommend any particular student to any particular college (or employer). Nobody disputes this.

This teacher, however, did something else. She actively recommended *against* the student. Since this happened before the student’s due process rights were fulfilled, it’s a case of deciding punishment prior to determining guilt. We like to avoid that in this country. It’s why, for example, sentencing is the LAST part of a criminal trial, rather than, say, halfway through.

So, to run through some hypotheticals, if the teacher had simply withdrawn her letter of recommendation, and referred the college admissions people to the school administration when asked why, there wouldn’t have been a complaint. Similarly, if she had said something like “there was an incident which is being investigated. If the investigation shows that the student did what was accused, then I cannot recommend him. I must rescind my recommendation until the investigation is completed, and possibly further depending on the outcome of the investigation.” The admissions staff would hace set “what kind of incident?” and the right answer would have been to refer them to the administration’s point of contact for disciplinary matters.

I started this by saying that people were way overthinking this, but then I began overthinking it, and I must say I hate what our society has become.

Of course the teacher’s correct, bureaucratic response to the question of why she had withdrawn her recommendation was “That is an internal matter that I am not at liberty to discuss.” End of discussion. The problem, of course, is that transparency is a key to accuracy and fairness, but it’s not allowed in bureaucratic communications. And it can get you in trouble.

You can’t provide unkind information about a person,almost no matter how true or pertinent it is. Everyone knows that, or should know it. Organizations have workshops where people are told how to CYA, often run by HR. The most you can do is refuse to provide a recommendation, or maybe damn with faint praise. So we live in a world devoid of the information we truly need — even though internally it may turn out that almost /everyone/ knows what is going on.

“Of course the teacher’s correct, bureaucratic response to the question of why she had withdrawn her recommendation was ‘That is an internal matter that I am not at liberty to discuss.'”

Close. The best, proper response would have been “That is a disciplinary matter which has not yet been fully investigated and adjudicated. You may contact the disciplinary officer, Mr./Ms. (x), for information when the disciplinary proceedings are complete. I cannot recommend this student while this proceeding is pending.”

This response is accurate, honest, and truthful, yet still honors the due process in the disciplinary process, and pushes the decision to the administrator who will be actually making a determination. Note that if the disciplinary process is itself fair and accurate, the end result is the same. However, some disciplinary processes are NOT fair and accurate. Favored students get minor punishments or no punishments at all (“we wouldn’t want to interfere with his ability to get into a good college, now would we?”) while disfavored students feel the full weight.

The point of bureaucracy is fairness. All the decisions are made in advance, and bureaucrats must simply follow the policy that was set. The more discretion bureaucrats have, the more likely that discretion is to be abused. But if you strip away all the discretion, the bureaucrat has no tool to handle a case that isn’t adequately covered by policy.

The teacher seems to be the more rash party, not the teen. This was a moment for reflection, redirection, and consideration of how words and actions can affect the perception of people around one’s self.

The student acted rashly, as is typical for teens. We don’t know what the student would have later done to reverse their stance given the opportunity for cooling off and personal reflection.

We do however know exactly what the teacher is at her core, having taken no time to act as a guiding adult in this situation, she went nuclear, and tattled to her peers and the student’s college. Perfect example of how to be an uncaring asshole.

I don’t know to whom we should leave the question of when an incident rises to the level of impacting a students’ future.

I do know it’s not us Internet commenters though. And I don’t think we know enough to figure out what the teacher did or saw others doing with the student outside of this letter. I can see lots of scenarios wherein the teacher acted properly. Calling the teacher an uncaring asshole requires a totality of the facts we don’t have.

“I don’t know to whom we should leave the question of when an incident rises to the level of impacting a students’ future.”

I tend to come down on the “more information” side of questions like this. I don’t like hiding information from people who have to make decisions… decisions are more likely to be correct when the person making them has access to more information.

The college processes however many applications each year, and has its procedures in place to ensure that the people they admit will benefit from the education offered and will complete their course of study. How is that procedure improved by keeping from them the information about this incident?

The teacher withdraws her recommendation. That, by itself, is pretty significant. When asked why, she provides the details of the incident she knows or thinks she knows. The college admissions staff should follow up through the proper channels to make sure the teacher’s understanding is full and complete (and reflects final determination, to the extent possible) before deciding to un-admit the kid. If that IS the process, it’s hard to see how the kid’s interests have been damaged by anyone’s actions but his own.